General Manager of S.E. Rly., Representing the Union of India (Uoi) (Central Govt.) Calcutta and ors

Appellant Advocate

N. Rajeswara Rao, Adv.

Respondent Advocate

K. Krishnamurthy and ;S.P. Srivastava, Advs.

Disposition

Revision dismissed

Excerpt:limitation - lapse of time - articles 30 and 31 of limitation act, 1908 - petitioner send goods by railway - part of goods lost in transit - filed suit for compensation - case governed by article 30 - period of limitation started from consignee's knowledge about pilferage of goods - correspondence after delivery does not extend time of limitation - petitioner knew about lost of goods - did not file suit within time specified - held, suit barred by time.
- - ultimately, the concerned railways repudiated their liability to make good the loss sustained by the petitioner. in our opinion, the fact that after delivery was taken correspondence ensued between the carrier and the consignee as regards the failure to deliver the consignment in its entirety would not affect the starting point of..........of carriage of goods by rail in one respect viz. that whereas in contracts of carriage of goods by railway there is ordinarily no knowledge as to by which particular train the goods will be despatched nor is there any undertaking by the railway as regards such train, there is ordinarily in contracts of carriage of goods by sea a distinct arrangement that the goods will be shipped by a particular vessel.in the case before umamaheswaram j. i. e., 1957-1 andh w. r. 277, all the bags of jaggery were carried in one ship. that being so, the time when the remaining bags ought to be delivered was when the rest of the bags were delivered to respondent, namely, 11-1-1949. consequently, cases dealing with contracts of carriage of goods by rail are inapplicable to cases of carriage of goods.....

Judgment:

Chandra Reddy, C.J.

1. This revision petition is filed against the judgment and decree of the Subordinate Judge, Visakhapatnam dismissing S. C. S. No, 226 of 1956 instituted by the petitioner against the Union of India, represented by the Ministry of Railways, New Delhi the South Eastern Railway the Western Railway and the Central Railway, for recovery of a sum of Rs. 790-6-6 by way of compensation for the loss of sixteen pieces of shirting cloth.

2. The facts giving rise to this revision may be briefly stated. A bale of shirting cloth was despatched on 23-7-1955 from Ahmedabad to Visakhapatnam to be delivered to the petitioner. The consignment was received at Visakhapatnam on 2-9-1955. On arrival, it was found that the bate was tampered with and sixteen pieces missing. The Station Master gave the shortage certificate for the same. Immediately, the petitioner brought it to the notice of the authorities concerned who promised to institute an enquiry into the matter. Ultimately, the concerned railways repudiated their liability to make good the loss sustained by the petitioner. The action giving rise to the revision was laid claiming a sum of Rs. 779-8-0 being the value of the pieces and incidental charges.

3. The suit was contested on several grounds but the one relevant for this enquiry is that the suit is barred by limitation as it was filed beyond one year from the discovery of the loss.

4. The learned Subordinate Judge dismissed the suit holding that the suit was barred by time since it was filed beyond one year of the occurrence of loss. Aggrieved by this decision, the plaintiff brought this revision.

5. Umamaheswaram J., who first heard this petition, posted it before a Bench as he felt that an important question of law is involved in this petition.

6. The argument presented before us by Sri. Rajeswara Rao, counsel for the petitioner, in support of the petition is that the trial court erred in thinking that it is Article 30 of the Limitation Act that is applicable to this case but the facts of this case would bring it only under Article 31. Sri. Rajeswara Rao urges that, if Article 31 should govern this case, the suit must be held to have been instituted in time as it was filed within one year of the final reply of the concerned railway. So we have first to see which of the Articles, Article 30 or Article 31, that is applicable to this case. Assuming that Article 31 applies, could the suit be said to have been laid in time?

7. It is convenient at this stage to refer to the two Articles in question. Article 30 prescribes a period of one year against a carrier for compensation for losing or injuring goods from the date of loss or injury occurred, while Article 31 prescribes a period of one year against a carrier fov compensation for non-delivery of, or delay in delivering goods from the date when the goods ought to be delivered. The point presented by Sri Rajeswart Rao is that Article 30 is inapplicable to this case as it was not established by the proper railway that the pieces in question had been lost. That being the position, it is Article 31 that comes into operation in this case, continues the learned counsel.

9. We do not think that the first, two of these rulings are of much avail to the petitioner, as the situation in any of them is not similar to the one obtaining in the instant case.

10. 23 Mad LJ 511, appears to be a case of non-delivery of the goods and not a case where part of the contents of a bale or bag was abstracted. In that position, their Lordships observed that there was nothing in the evidence to show that the goods were lost more than one year before the institution of the suit and that it could not be said that the plaintiffs delayed more than one year from the expiry of a reasonable time within which, in the circumstances of the case, the goods should have, been delivered.

11. The facts of : AIR1950Mad438 , were similar to those cited above. There, the bales or cotton cloth which were consigned at Rajapalayam in the South Indian Railway for despatch to Gun-tur did not at all reach Guntur and at length after correspondence it was not till a year thereafter that the railway company informed the plaintiff of its inability to deliver the goods. It is thus seen that it was a case of non-delivery pure and simple and it was open to the railway company to trace out the bales which might have been miscarried and deliver them to the consignee. That was also not a case of a single bale or package delivered and some articles were found to have been pilfered therefrom. In that position, the learned Judge had to negative the plea of limitation,

12. In : AIR1960Pat102 , the plaintiff bought some bales of cotton goods in Bombay and despatched the same to Raxaul to he delivered to the plaintiff. Some time later, short-delivery was made to the plaintiff. The plaintiff made a claim for compensation for goods lost and the defendant assured the plaintiff that the matter was being investigated and kept him in suspense till 9-7-1951, when the defendant finally refused to recognise the claim of the plaintiff.

A suit was brought four months later and the question arose whether limitation ran from 6-10-1950 or, 9-7-1951. The learned Judge (Naqui Imam J.) held that the period of limitation commenced from 9-7-1951 when the plaintiff's claim was rejected by the defendant. The learned Judge thought that in a case where correspondence passed between the carrier and the consignee of the goods and the former gave some hope that something might be done towards the claim but finally rejected the claim, the period of limitation would run from the date when the railway sent a letter to the plaintiff rejecting all his claim.

We do not think that we can subscribe to the proposition so broadly stated by the learned Judge. In our opinion, the fact that after delivery was taken correspondence ensued between the carrier and the consignee as regards the failure to deliver the consignment in its entirety would not affect the starting point of limitation. Correspondence between the parties by itself would not enlarge the period of limitation prescribed either by Article 30 or Article 31 of the Limitation Act. This view or ours is in consonance with the rule stated by the Supreme Court in East and West Steamship Co. Georgetown, Madras v. S K. Ramalingam Chettiar, : [1960]3SCR820 . The correspondence and the final reply of the carrier expressing its inability to make delivery will have a bearing in cases where the whole of the consignment itself had not arrived and when no time was fixed for delivery. May be, in a situation like that, due diligence might result in the tracing of the consignment. In such a position unless it is established that the goods were lost, Article 30 would not apply. But that can have no analogy where it is proved that a part of the contents of a bag or bale is lost.

The conclusion of the learned Judge will be justified if a few of the bales had not at all arrived. What exactly was the position there does not appear from the report. The learned Judge proceeded on the assumption that the correspondence would extend the period of limitation. That it can have no application to a case where some of the contents of a package was abstracted is also seen from a ruling of that court which will be referred to presently.

13. Coming now to 1957-1 Andh W. R. 277, the facts of that case were:

301 bags of jaggery were entrusted to the appellant company for being delivered at Calcutta. Only 234 bags were delivered in January 1949. A shortage certificate was issued by the Port authorities regarding the remaining 67 bags. There was some correspondency between the parties and finally on 30-8-1950 the appellant company repudiated its liability to pay the value of the 67 bags to the respondent. A suit was filed on 13-10-1950 by the respondent as against the appellant company.

The plea of limitation based on Article 31 of the Limitation Act was negatived by Umamabeswa-ram J. In coming to this conclusion the learned Judge relied on : AIR1950Mad438 , and refused to follow Haji Stakoor Cany Firm v. Volkart Brothers, AIR 1931 Sind 124, wherein it was held that time should commence to run from the date when the ship started to unload at the port. In our Opinion, : AIR1950Mad438 , would not apply to a case of carriage of goods by sea.

The conditions of contract of goods by ship are essentially different from the contracts of carriage of goods by rail in one respect viz. that whereas in contracts of carriage of goods by railway there is ordinarily no knowledge as to by which particular train the goods will be despatched nor is there any undertaking by the railway as regards such train, there is ordinarily in contracts of carriage of goods by sea a distinct arrangement that the goods will be shipped by a particular vessel.

In the case before Umamaheswaram J. i. e., 1957-1 Andh W. R. 277, all the bags of jaggery were carried in one ship. That being so, the time when the remaining bags ought to be delivered was when the rest of the bags were delivered to respondent, namely, 11-1-1949. Consequently, cases dealing with contracts of carriage of goods by rail are inapplicable to cases of carriage of goods by sea.

14. This principle is enunciated by their Lordships of the Supreme Court in : [1960]3SCR820 . Their Lordships distinguished the cases of contract of carriage of goods by railway from those of contract of carriage of goods by sea. Referring to a number of cases cited before them, which considered the question of the ascertainment of the date when the goods 'ought to be delivered' for the purpose of Article, 31 of the Limitation Act, their Lordships remarked that they all dealt with cases of transport by railway where no date had been or could be specified in the contract of carriage.

Their Lordships pointed out that in the case of the contract of carriage of goods by sea the name of the vessel is ordinarily indicated in the bill of lading itself and it is the duty of the carrier under the contract of carriage to carry the goods by a particular ship and then to deliver the same on the arrival of the ship at the port They added that there could be no doubt as to the ascertainment of the date of the delivery of all goods in the ship in the case where all the goods were consigned by the ship but there was short delivery.

14-A. In our opinion, 1957-1 Andh W.R. 277 does not state the law correctly.

15. In the present case, there can be no room for doubt that Article 30 comes into play. Indisputably, the loss must have occurred some time before it was discovered that sixteen pieces were missing. There can, therefore, be no question of tbe railway establishing that loss had occurred at a particular time. It would have been a different matter if the bale in its entirety had not arrivea. It is only in such a case that the carrier has to prove that loss had occurred. But in a case like this, where it is proved that some pieces of cloth have been abstracted, it is futile to contend that still the railway has to show that loss has occurred and at a particular time.

16. In this context, we shall refer to the judgment of Mack, J. of the Madras High Court in Dominion ot India v. Nagardas & Co., (S) : AIR1955Mad235 . There, two bales of dhoties were sent from Ahmedabad to Vijayavada. One bale was delivered to the plaintiff, the consignee, but in the other bale 140 pairs of dhoties were found missing. The plaintiff took open delivery after obtaining a certificate from the Commercial Inspector of the concerned railway. In those circumstances, the learned Judge upheld tbe plea that under Article 60 of the Limitation Act the suit was barred by time as it was filed beyond one year of the delivery of the damaged bale.

The learned Judge referred to : AIR1950Mad438 , which has been referred to, by us, above, Seetharama Sastri v. Hyderabad State, : AIR1950Mad30 , and Palanicbami Nadar v. Governor General of India in Council, AIR 1946 Mad 133, and distinguished them on the ground that they were all instances of non-delivery pure and simple, and not a case where there was abstraction of part of the contents of a single bale or a single bag. He thought that they would not have any application to a case of a package out of which it could be posited that loss occurred when the package was opened and some of tbe contents were found to have been pilfered in transit. We exprees our assent to the principle underlying, (S) : AIR1955Mad235 .

17. Even if it is assumed that the instant case would come within the purview of Article 31, it would make no material difference. In the consideration of this question, it should be remembered that this is not a case where the bale as such had not arrived but this is a case where part of the contents was missing. That being the legal position, the time when the plaintiff took delivery of the bale was the time when the other contents forming part of the bale ought to have been delivered. In a case where portion of a consignment is un-delivered, delivery of a part of the consignment determines the time when the goods ought to be delivered.

18. This View of ours is supported by a number of decided cases. In Rameshwar Dass Mali Ram v. E. I. Railway Co., Ltd., AIR 1923 Pat 298, it was held that a case of loss of a portion of consignment undelivered was equivalent to a case of short delivery and time began to run when the loss occurred i.e., when the short delivery which constituted the loss was made. The judgment of another Bench of the same Court in Gajanand Raj-goria v. Union of India, (S) : AIR1955Pat182 , is in consonance with this doctrine.

That was a case where a few of the bags of sugar which were made over to the consignee found to contain less than what they had when they were despatched or consigned. On these facts, Imam C. J. and Das J. decided that the date when the goods ought to be delivered was the date when all the bags were made over to the consignee. To the same effect is the judgment of the same Court in Shamburam v. Union of India, : AIR1958Pat118 .

19. A Bench of the Calcutta High Court consisting of Gupta and Law JJ. held in Union of India v. Meghraj, : AIR1958Cal434 , that in most cases in the absence of peculiar circumstances, it would be proper to hold that the date when a major portion of the consignment was delivered would be the date when the rest of the consignment ought also to have been delivered.

20. To a similar effect are the following observations of Guha Ray J. in Gajadhar Shaw v. Union of India, : AIR1959Cal21 .

'Where the goods are loaded in the wagon and the wagon arrives at the destination but it is found that the entire goods are not in the wagon, although at the time of loading the whole quantity was there, the date when the goods ought to be delivered is the date when really the wagon arrives at the station. If a part of the goods cannot be delivered on that date, obviously they can never be delivered at all. That being so, in such a case, the time when the goods ought to be delivered is really the time when the wagon containing, the goods arrives at the destination.'

21. It is unnecessary to multiply citations on this topic. Suffice it to say that in circumstances like those we have in this case the starting point of limitation is the time when the bale containing the piece goods was received by the petitioner and when it was found that some of the contents were pilfered.

(22) The suit in this case not having been filed within the expiry of one year from that date, it is barred under Article 31 of the Limitation Act also. Jn the circumstances, the conclusion of the trial court cannot be assailed.

23. In the result, the revision fails and is dismissed. In the circumstances of the case, the parties will bear their own costs throughout.